Abstract

Nonconsensual condom removal during sexual intercourse exposes victims to physical risks of pregnancy and disease and, interviews make clear, is experienced by many as a grave violation of dignity and autonomy. Such condom removal, popularly known as “stealthing,” can be understood to transform consensual sex into nonconsensual sex by one of two theories, one of which poses a risk of over-criminalization by demanding complete transparency about reproductive capacity and sexually transmitted infections. Adopting the alternative, preferable theory of non-consent, this Article considers possible criminal, tort, contract, and civil rights remedies currently available to victims. Ultimately, a new tort for “stealthing” is necessary both to provide victims with a more viable cause of action and to reflect better the harms wrought by nonconsensual condom removal.

Nonconsensual condom removal or „stealthing“ is the practice of one sex partner covertly removing a condom, when consent has only been given by the other sex partner for condom-protected safer sex.[1][2] In UK law, such consent is known as conditional consent.[3][4] In 2017, a Swiss court convicted a French man for rape for removing a condom during sex against the expectations of the woman he was having sex with.[5][6] Existing laws do not specifically cover stealthing,[7] despite the heightened pregnancy and public health risks. [8]